October 31, 2018

OF COURSE, DONALD WOULD HAVE BACKED TANEY:

In the infamous 1857 Dred Scott decision, Chief Justice Roger Taney declared that a black man generally couldn't be a United States citizen--that he had "no rights which the white man was bound to respect." Candidate Lincoln campaigned against the decision in 1858 and 1860. Then, under President Lincoln, Attorney General Edward Bates took on Dred Scott in an 1862 legal opinion arguing that free blacks generally could be U.S. citizens. Finally, the Republican Congress enshrined the principle of birthright citizenship in America's first major civil rights law, the Civil Rights Act of 1866. Two months later, Congress included birthright citizenship in its proposed 14th Amendment.

At the simplest level, the 14th Amendment's Citizenship Clause was meant to repudiate Dred Scott and place the Civil Rights Act of 1866 on a firm legal foundation. However, it was also meant to root post-Civil War America in an inspiring Lincolnian reinterpretation of one of our nation's Founding truths, that we're all born free and equal.

Let's begin with the text of the Citizenship Clause: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." While the 15th Amendment explicitly mentions race, the 14th Amendment's text is more capacious--speaking not just of African Americans, but of "[a]ll persons." This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.

The Citizenship Clause is one of the richest single sentences in the entire Constitution, rivaling the Preamble in both theoretical depth and breadth. Among other things, the Amendment constitutionalizes Lincoln's reinterpretation of Jefferson by making clear that Americans are created equal--born equal, in the key language of this key sentence. This birth equality idea clearly condemns a racial caste system in which light-skinned children are born lords and dark-skinned children are born serfs. Indeed, the sentence goes far beyond race by condemning all sorts of other systems that improperly exalt some and degrade others because of birth status. The sentence thus explains why certain types of birth-based governmental discrimination are suspect (laws based on race or sex or sexual orientation or illegitimacy) whereas most other kinds of governmental line-drawing (say, between wage income and dividend income) should not be viewed with comparable skepticism.

Critically, the sentence focuses our attention on place, not parentage. Unlike the law of many European countries, in America the key issue of constitutional citizenship is based on the law of the soil, not the law of blood.